Numerous civil liberties groups filed a federal lawsuit this morning in Philadelphia challenging the constitutionality of Congress' second attempt to regulate speech on the Internet.

The lawsuit — led by the American Civil Liberties Union, Electronic Frontier Foundation and Electronic Privacy Information Center on behalf of 17 organizations — became a reality when President Clinton signed into law yesterday afternoon a $500 billion spending bill that contains provisions designed to protect children from harmful material on the Internet.

The plaintiffs are seeking an injunction to halt enforcement of the Child Online Protection Act, or COPA, which provides criminal penalties for those who distribute material that is “harmful to minors” without employing some sort of age-verification system to separate adult and minor users.

The law, sponsored by Rep. Mike Oxley, R-Ohio, was scheduled to go into effect 30 days after being signed into law.

Two years ago, civil liberties groups began their successful challenge of Congress' first foray into regulating online speech — the Internet indecency provisions of the Communications Decency Act of 1996, or CDA.

In June 1997, the U.S. Supreme Court in Reno v. ACLU struck down provisions criminalizing “indecent” and “patently offensive” online communications, finding that “the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech.”

While the high court recognized a government interest in protecting children, the court said “that interest does not justify an unnecessarily broad suppression of speech
addressed to adults.”

However, supporters of the new Internet pornography laws contend they will survive judicial review.

David Burt, president of Filtering Facts, said: “The new provisions are a lot more narrowly tailored. They employ a different standard and are specifically targeted at the teaser clips used by commercial pornographers.”

The massive spending bill also contains a provision sponsored by Sen. Dan Coats that contains language similar to the Oxley measure. The main difference is that COPA — also referred to as CDA 2 — imposes criminal penalties, while Coats' measure denies a tax break to those who fail to employ an age-verification system. A three-year tax break for Internet entrepreneurs, the Internet Tax Freedom Act, was also included in the spending bill.

Bruce Taylor, president and chief counsel for the National Law Center for Children and Families, said that the civil rights groups' challenge will ultimately fail.

“The Oxley COPA measure will be upheld for two basic reasons: First, the law only uses the harmful-to-minors standard which has been upheld by various courts for more than 30 years,” Taylor said. “Secondly, this law only applies to people who can comply financially with the adult-verification requirements — commercial pornographers on the World Wide Web.”

David Sobel, legal counsel for EPIC who will serve as co-counsel in the new lawsuit, said that supporters of the new legislation also argue that the legislation applies only to commercial speakers, not nonprofit organizations.

However, Chris Finan, president of the American Booksellers Foundation for Free Expression, another party to the lawsuit, says that even though there are differences between the new legislation and the ill-fated provisions of the first CDA, it still suffers from the basic flaw of censoring material allowable for adults.

“Our feeling is that the same principles are at stake as in the CDA — the rights of adults to get access to all constitutionally protected material available on the Internet,” Finan said. “We are convinced it is unconstitutional and needs to be attacked.”

Supporters of the legislation, such as Taylor and Burt, say that the different standard in what has come to be called CDA 2 — the harmful-to-minors standard as opposed to an indecency standard — is constitutionally significant.

In Reno, the Supreme Court said the Internet indecency provisions of the CDA differed from the law at issue in a 1968 case, Ginsberg v. New York. In that case, the court upheld the constitutionality of a New York law that prohibited selling minors material that was harmful to them but not obscene for adults.

In distinguishing the CDA from the statute in Ginsberg, the high court wrote: “The New York statute applied only to commercial transactions, whereas the CDA contains no such limitations.” The court also noted that the New York statute excluded any material that had serious literary, artistic, political or scientific value while the CDA “omits any requirement that the 'patently offensive' material … lack serious literary, artistic, political or scientific value.”

However, Finan disagrees that the use of the harmful-to-minors standard makes the legislation constitutional.

“Harmful to minors is a standard originally applied to books and magazines, things that people can buy in stores and carry home,” he said. “This is a new medium and when you cannot get access to see this material online, you can't have it or consume it. To bar adults from seeing this material except through the use of a credit card is to create an unconstitutional hurdle. It will chill the distribution of this material.

“This law will affect more than just pornography; it will affect material that has serious literary or artistic value.”

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THE EXPERTS

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

Founded by John Seigenthaler, the First Amendment Center is an operating program of the Freedom Forum and is associated with the Newseum and the Diversity Institute. The center has offices in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn., and at the Newseum in Washington, D.C.

The center’s website, www.firstamendmentcenter.org, is one of the most authoritative sources of news, information and commentary in the nation on First Amendment issues. It features daily updates on news about First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues. Support the work of the First Amendment Center.

1 For All

1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

This site no longer is being updated … And the competition itself is moving to Washington, D.C., where the Newseum Institute’s First Amendment Center is co-sponsoring the “Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition,” March 18-19, in partnership with the Columbus School of Law, of the Catholic University of America.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

FIRST AMENDMENT CENTER ARCHIVES

State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
See the reports.